a loom, I stood in many a shoe shop; I went around the whole thing. And now, gentlemen, I have put this question to them, and I put it to them very pointedly: "Would you be in favor of a law which deprived you of the privilege of working more than eight hours a day if you wanted to?" I never found one that said he was in favor of it. They are not in favor of it. Now, gentlemen, I tell you

Mr. GILBERT. Whom did you talk with, the employers or the employees?

Mr. DAVENPORT. The employees. For instance, I went down to Philadelphia. There are those great Baldwin Locomotive Works. Of course, when these business men were away it was a waste of time to go to their offices. I went around the Baldwin Locomotive Works there, and there were 6,000 or 7,000 men at work in that establishment. Repeatedly I went and stood among them. Down at Cramp's shipyard I did the same thing; they were at work there and I went among them; I talked about these things to them, just simply as any other intelligent person would do who wanted to know about things-wanted to get information. Now, gentlemen, those men are not fools. They have got that same hard-headed intelligence that you have got, and I tell you that there is no greater risk that any party or any man ever assumed than to put himself upon record as in favor of denying the right of any individual workingman to work more than eight hours if he wants to. That man or that party who stands sponsor for such a doctrine as that I tell you is going swiftly to political destruction, and rightfully, too. The individual workingman values his opportunities. He wants short hours, but he wants short hours with the privilege of working more and making more. Do not be deceived about this. I know that the distinguished representatives of organized labor who hear me do not believe it; they think that they have gathered the sense of the workman and they are here for the purpose of expressing the fact to be other than that.

Now, if you want to make a test of this thing, if you want to do the sensible thing, put a plank in the platform of your Congressional district that you are in favor of a law, that you will vote for a law, which will deprive the workingmen of that district of the privilege of working more than eight hours if they want to. Just make a test of it. I ask you to do it. Instead of assuming that I do or do not know what I am talking about, or that these gentlemen do or do not know what they are talking about, if you want to find out what the American people want, of whom of course the working people are the great and vast majority, put it in your platform and run for Congress on it. The Hon. E. J. Hill, of the Fourth Congressional district of Connecticut, is my Representative. Although I have been a Democrat all my life, and have eaten and drunk and tasted and smelt and swum in and advocated Democracy from a thousand stumps, I was obliged twice to vote for E. J. Hill. If you want to test this thing, let Mr. Hill come up to Connecticut and stand on this platform, and then if the American people, or the people in his district, are in favor of it, then let him vote for it. But do not attempt to put through a law so tyrannical as this without first giving the American people a chance to say something about it.

Mr. GILBERT. Suppose the manufacturers and employers have an association by which they could dictate the number of hours to labor. Your major premise is that each individual laborer would be per

mitted, in the absence of this legislation, to select the number of hours he would be required to work. Suppose that the individual laborer would have no chance as against the organization of the employers, and that his employers would dictate to him the number of hours of labor he must work.

Mr. DAVENPORT. So far as that is concerned, I do not understand that there is any organization, nor is there likely to be any organization of employers to do that; but let me say that the great interest of society is that the employer and the employee should be left entirely free to do as they please about it.

Mr. GILBERT. If that is true, if you were to put them on an equality, where each individual laborer would have the perfect right to contract for himself without any restraining influence, perhaps that would be true; but assuming that he has not that power, that he is a mere creature in the hands of a vast number of employers

Mr. DAVENPORT. I do not think that the State ought to attempt in any way to declare it by law. But the great point that I was making is that if you are going to pass a law on that subject, be quite sure that you know what the individual employee and the great mass of the employees want.

Now, I know that it can be very well said, "Why, humph, you represent here a great organization of men who for reasons of their own keep the membership secret, and you went among them as their representative and you were tinged with their views, and you are not a good reporter of the thing, and we prefer to take the views of the other gentlemen."

Now, gentlemen, all I will say to you on that point is that I speak as I would like to be spoken to myself. If I were in your position and you were in mine I should thank you if you came to me and told me the truth about this matter, if you knew it. Now, let me say, speaking with all the sincerity that fairness between man to man demands, that the working people of this country, from the extensive connection that I have had with them, coming in the way that I have said, are not in favor of it, and if this thing is fought out before the American people I believe you will find that my judgment and my testimony about the matter are well founded.

Now, let us turn to the other side of this question. I said to you the other day that the employers were opposed to this measure, and they are opposed to it, so far as I know, to a man. As far as my acquaintance goes among them, and it is very extensive, I find that they are unanimously opposed to it. They resent the interference with their liberty. In the second place, they insist that any such bungling arrangement as this interfering with their business will be destructive of their business, and they feel that their relations with their employees are not such as to warrant in anyway the interference by the Government

in their affairs.

You have no doubt read the testimony given in former hearings. Let me say that that is only the expression of a universal sentiment, and I say to you, from the wide experience I have had among them, that the employers are opposed to this measure.

But I know I am in the presence of lawyers here, and I know that they are curious to know what we want to say about this particular bill. I have no doubt it has occurred to a good many of you gentlemen that there might be some question as to the constitutionality of

this bill. Let me tell you, gentlemen, the rock on which this bill will split if it ever becomes a law.

I have here a copy of the bill. You know this bill provides that every contract made in behalf of the United States Government or any Territory or the District of Columbia which involves the employment of laborers or mechanics shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract in the employ of the contractor or any subcontractor contracting for any part of said work contemplated shall be required or permitted to work any more than eight hours in any one calendar day upon such work; and every such contract shall stipulate a penalty for each violation of such provision in such contract of $5 for each laborer or mechanic for every calendar day in which he shall be required or permitted to labor more than eight hours upon such work, and it then provides that the officer who is to inspect the work shall report it to the proper officer, etc., and the one whose duty it is to approve the payment of the moneys under the contract shall withhold it. And then it provides that in case any contractor or subcontractor is aggrieved by the withholding of any penalty as provided, he shall have the right to appeal to the head of the Department making the contract, or in the case of a contract made by the District of Columbia, to the Commissioners thereof, who shall have power to review the action imposing the penalty, and from that final order whereby a contractor or subcontractor may be aggrieved by the imposition of the penalty provided, such contractor or subcontractor may appeal to the Court of Claims.

Mr. GILBERT. Did you observe that language there "who shall have power to review the action imposing the penalty?"

Mr. DAVENPORT. Yes, sir.

Mr. GILBERT. Suppose the action should not impose a penalty?

Mr. HUGHES. There is no necessity for review, then?

Mr. DAVENPORT. There would be no necessity for review.

Mr. GILBERT. There seems to be no power of review except where the penalty has been imposed.

Mr. DAVENPORT. Now, I want to direct your attention as lawyers to this proposition.

Suppose, for argument's sake, that the Cramps made a contract with the Bethlehem Steel Company as subcontractors, and we will suppose that the officer reported that the Bethlehem Steel Company's employees worked in defiance of the bill, and a report was made to the proper officer, and he withheld that money from the Cramps; that it went on up to the Court of Claims and they sustained it. Now, I will suppose that I represent the Bethlehem Steel Company and Judge McCammon represents the Cramps, and I come to him and I say, "I want the money that is due under the subcontract." "Well," he says, "you know the Government has withheld the money from me on account of your violation of this." (It may be that the Cramps to protect themselves have attempted to do the only thing they could do, put a stipulation in the contract that the Bethlehem Company should not do this thing; because you will observe that this bill relates only to the original contractor, the contract between the original contractor and the Government; or, perhaps, he might have a bond to protect him.)

He says the Government has withheld it. I say, "That is not true, my men did not work more than eight hours a day," or I may say, "You knew that they were working and you waived that"-one of those things or the other. And I bring suit. I say, "Here, I want

the money," and I bring a suit against the Cramps in behalf of the Bethlehem people for the recovery of the contract price. What court will I bring it in? We are citizens of the same State. The jurisdiction of the Federal court does not extend, except to controversies between citizens of different States, except as they contain a question arising under the Constitution and laws of the United States. I bring this suit in the State court. Now, waiving the question of whether because of the fact that there was this snarl about it, the law would permit him to remove it into the United States circuit court for that district, I go to trial on that case. I go to trial and he sets up this claim. He says, "By virtue of the law of the United States bearing upon this subject, the officers of the United States Government have withheld from me certain moneys that were due me," and I am to oppose that as a defense. I say to him, "I do not admit anything of the kind." We are entitled to a trial by jury. The jury finds the issue in favor of the Bethlehem Company. The Bethlehem Company can recover from the Cramps the amount of the obligation. Now, you have in this bill, gentlemen, as it is provided, and according to the machinery here, something which is incapable of being practically carried out something that will operate in this way, and only in this wayit will make the contractor liable to the Government, and at the same time leave him exposed to the loss of that which he had on account of the conduct, supposed misconduct, of the subcontractor.

Mr. HUGHES. Can not he put the same provision in his contract? Mr. DAVENPORT. What good would that do if he put the provision in the contract? He says here, "I did not do it, I did not break the

contract."

Mr. HUGHES. The Government inspector does the work.

Mr. GILBERT. Could he not by intervening pleading-the plea of intervention, as they call it in the Federal court-bring you in and have the whole question determined there, and you have your day in court upon the original adjustment of the proposition?

Mr. DAVENPORT. But that has been withheld, it has been gone through with by this machinery. We say nothing now about the confusion and distraction of the contractor from the fact that his money has been withheld; but when it comes to the end he comes into the court, a citizen of one State and a citizen of another, they have the right to have their question tried by jury.

Mr. GILBERT. You claim that you would not be bound by any adjustment between the head of the Department and the original contractor, you not being a party to the original transaction?

Mr. DAVENPORT. That is it exactly.

Mr. GILBERT. You have not had your day in court and no opportunity has been given you to present the issues

Mr. DAVENPORT. You have hit it; and not only that, but you can not deprive a man of having his day in court and his matter being tried by a jury.

Mr. GOEBEL (reading):

Any contractor or subcontractor aggrieved by the witholding of any penalty as herein before provided shall have the right to appeal to the head of the Department. Mr. DAVENPORT. He has that privilege, but suppose he does not care to exercise it?

Mr. GOEBEL. Of course, he might not want to exercise it. But I say, does not this bill provide this right?

Mr. DAVENPORT. But the point I make is, and I think if you study it you will come to the same conclusion, that you are expecting that the operation of this bill will mean to settle the matter by the proceeding being taken up to the Court of Claims.

Mr. HUGHES. Is it not precisely the same as if an architect was empowered to withhold money until he signed a certificate?

Mr. DAVENPORT. Certainly.

Mr. HUGHES. There is no trouble about the contravention of the State law in a case of that kind; that is done every day, is it not?

Mr. DAVENPORT. I beg your pardon; a State law that deprives a party of the right to resort to courts has been held over and over again to be unconstitutional.

Mr. HUGHES. But if they go into court on that contract-my experience has been that a contract of that kind would be sustained-and until the architect certifies that certain things have been done they will not be held to be done.

Mr. DAVENPORT. If it is a condition precedent to the right to recover that there shall be a certificate by a certain person, then, of course, the party is precluded by that.

Mr. GILBERT. Here is Mr. Davenport's point [reading from bill, page 2, line 15]:

In any such contract shall be directed to be withheld by the officer or person whose duty it shall be to approve the payment of the moneys due under such con

tract.

Now, that officer whose duty it is to disburse the public funds will pass upon the question in an ex parte proceeding and dispose of the question as to the amount of penalties to be retained. Then when he comes to distribute that to the subcontractor he has not had his day in court.

Mr. GOEBEL. But read on

Any contractor or subcontractor aggrieved by the withholding of any penalty, as herein before provided, shall have the right to appeal to the head of the department. Mr. GILBERT. But the grievance of the subcontractor is against the contractor and not against the disbursing officer.

Mr. GOEBEL. Oh, well; but this includes also: "Whether the violation of the provisions of such contract is by the contractor or any subcontractor."

Mr. DAVENPORT. That is, of course, as between the contractor and the Government.

Mr. GOEBEL. Or any subcontractor.

Mr. DAVENPORT. As between the contractor and the Government as to the act of the subcontractor; but so far as the subcontractor is concerned this law does not make provision in regard to subcontractors. Mr. GILBERT. The question of penalties or no penalties is adjusted between the disbursing officer and the contractor.

Mr. DAVENPORT. And the provisions of this bill are limited only to the original contract; it does not undertake, and I take it it goes beyond belief that they meant to undertake

Mr. GILBERT. That is a very just criticism upon that language there. Mr. DAVENPORT. Just observe the language of the act.

That every contract hereafter made to which the United States, any Territory, or the District of Columbia is a party, and every such contract made for or in behalf of the United States or any Territory or said District which may require or involve the employment of laborers or mechanics shall contain a provision.